'Vicious' Kriegler rebuts Hlophe

Cape Town - In an unusual move, former judge Johann Kriegler was given time in the Cape High Court on Wednesday to rebut what he said were "injurious falsehoods" by Cape judge president John Hlophe.

The court is hearing an application by Western Cape premier Helen Zille asking it to invalidate last year's Judicial Service Commission (JSC) finding that Hlophe was not guilty of gross misconduct.

She also wants an order that premiers be given a "reasonable opportunity" to take part in JSC proceedings when they relate to the high courts in their provinces.

Hlophe is Western Cape judge president.

At issue are the JSC's two meetings, in July and August last year, at which it considered and dismissed a complaint by Constitutional Court judges that Hlophe had tried to improperly influence their pending decision on a case involving President Jacob Zuma.

Hlophe said in his answering papers that when the allegations came to light, Kriegler and Zille's Democratic Alliance had called for his immediate suspension or resignation.

Kriegler's attempts to oust him had been part of a "very intense political campaign".

Untrue facts

"Former justice Kriegler was vicious in his campaign against me and he took every opportunity, including threatening to take the JSC to court if I was not found guilty of gross judicial misconduct," Hlophe said.

Though Kriegler was not cited as a respondent in Wednesday's hearing, he was in court at the start of proceedings.

And before the hearing proper got under way, the two presiding judges allowed Krigler's senior counsel, Henri Viljoen, to rebut Hlophe's claims.

Viljoen said Hlophe had "put forward facts that are untrue".

He said Kriegler, who heads the organisation Freedom Under Law (FUL) in South Africa, had never been part of a campaign involving other organisations.

Neither Kriegler nor FUL had ever suggested that either the Constitutional Court judges or Hlophe's version of events were correct.

All that Kriegler had sought was for the matter to be properly investigated, Viljoen said.

Earlier episode

This was the nub of a separate application that had been launched by FUL in the high court in Johannesburg.

In an affidavit, Kriegler said Hlophe might be confusing what happened in 2009 with an earlier episode in October 2007.

On that occasion the JSC had given Hlophe a slap on the wrist when the judge eventually admitted to receiving secret payments of close to half a million rand from a financial institution doing business in his jurisdiction.

"But even on that occasion, while I made plain that, on his own showing, judge Hlophe had acted disgracefully and was unfit for judicial office, my concern was not so much his misconduct but the dereliction of duty on the part of the JSC," Kriegler said.

After Viljoen's address, he and Kriegler left the courtroom.

Zille's counsel Sean Rosenberg told judges Jos Jones and Chamin Ebrahim, imported from the Eastern Cape and Free State to hear the case, that the JSC proceedings should be declared a "nullity" because the premier had not been invited to be part of them, as the Constitution required.

In addition, a majority of the maximum 25 members of the JSC had not supported the decision, as required by the Constitution.